Can Customs go back as far as they wish?
JOY ORLEK
THE COLLECTION by Customs of outstanding acquittals that are older than two years raises some interesting issues.
FTW understands that SARS has a huge number of outstanding acquittals involving large sums of unpaid duties and VAT.
It is questionable whether SARS is entitled to go back more than two years, but they have made it clear that they are reluctant to cancel any bonds until they have evidence that all payments are up to date, says Quintus van der Merwe of maritime lawyers Shepstone & Wylie.
“It may be that Customs will try to run a test case because there’s a lot of money involved,” he said.
“Goods removed in bond are required to be acquitted within 30 days in terms of the Customs Act. If the importer or his agent does not provide proof of the acquittal of the goods to Customs within 30 days, then Customs can call for VAT and duty to be brought into account,” says Van der Merwe.
Customs then has two years in which to call on the importer or his agent to pay the duty and VAT in the absence of any proof of acquittal of the goods.
This, in Van der Merwe’s view, then raises the debate regarding amounts going back beyond the two year period. “It is a problematic area,” says Van der Merwe, who argues that Customs is not entitled to claim the duty and VAT if it has failed to query the amount within the two year period. In his view Customs is obliged to act within the time period of two years that is allowed.
The matter is further complicated because prior to the amendment of the Customs Act, records were only required to be kept for a period of two years. How then, says Van der Merwe, is an importer or his agent expected to prove that the goods were acquitted.
He believes the problem has arisen in part due to the poor monitoring of the outstanding acquittals by Customs, probably due to their workload.
Hopefully such problems will soon be a thing of the past since Customs is introducing a new computer system that will generate automatic reminders after 30 days. “A proper system would benefit all concerned in that outstanding acquittals can be dealt with timeously and this would avoid the loss of revenue for the fiscus,” he said.
